Prashanti Upadhyaya

Whether laws of Sedition have any place in a Democracy or should it be Repealed ??

Kanhaiyya Kumar, young student leader from JNU Delhi, hailing from a poor family in Bihar is the latest victim of the charge of sedition. News reports suggest that the police has no record to show that he shouted any anti-national slogans. Yet he was arrested and put behind the bars. During the past two years or more intellectuals, artists and social activists have been mindlessly charged with sedition for saying things the establishment is not in favor of. Kanhaiyya’s arrest has now triggered a public debate on this much-misused law.

Sedition is an offence defined in Section 124 A of the Indian Penal Code, 1860. As per this Section, anyone who brings or attempts to bring into hatred or contempt or excites or attempts to excite disaffection towards the Government by words spoken or written or by signs or by visible representation or otherwise is guilty of the offence of sedition. The definition is so exhaustive that it does not leave out of its purview any possible mode of self-expression, simply by using the words “or otherwise”. The punishment for the offence of sedition is life imprisonment but lesser punishment can also be awarded.

Out of the three explanations added to the Section, two seek to clarify that expressing disapprobation of the measures of the Government or administrative action is not an offence. But any attempt to excite contempt, hatred or disaffection will definitely make such permissible disapprobation also liable to be punished. It is the ordinary police constable who will in the first person decide whether a brilliant speech made in a seminar by eminent author or a great cartoon made by a cartoonist will cause disaffection, contempt etc. towards the government. In an age of unenlightened patriotism and lumpenisation of politics the danger to the life and liberty of Indian citizens who speak out against the government of the day is too real, as is evident from some of the recent happenings.

It is therefore necessary to seriously debate sedition, and its impact on the fundamental rights of citizens. Pandit Jawahar Lal Nehru called sedition an obnoxious piece of legislation. But his government and all the subsequent governments retained it and misused it. Such hypocrisy of Indian politicians kept alive this colonial law which should have been repealed by the first Indian Parliament.

Sedition was brought into the Indian penal code in 1870, almost 10 years after the code was enacted. Its object was apparently to silence the Indian voice. Section 124A was adopted by the council of Governor General of India, which met in Shimla on August 2, 1870. The remarks made by J. Fitz James Stephen while presenting the bill before the council about the scope and extent of sedition are instructive. “Language temperate in itself and justifiable as far as the express meaning of its terms went might, if addressed to an excited mob be the clearest proof of an intent to produce forcible resistance to authority. While genuine criticism had nothing to fear from the proposed section, persons seditiously disposed must not suppose that they could evade its provisions by confining themselves to what under other circumstances and in other persons might be genuine criticism”. It is an outrageous statement of the law on sedition which in simple language means that sedition could be slapped on persons of seditious disposition. Honorable Fitz James Stephen was adding a new dimension to Anglo-Saxon jurisprudence by suggesting that a man’s disposition will also make him liable under sedition.

After sedition was introduced in the code the first major case that was tried under it was Lokmanya Tilak’s case[1] in which the clearest exposition of the law was made by Strachy J. While stating the law before the jury he said “the offence consists in exciting or attempting to excite in others certain bad feelings towards the Government. It is not the exciting or attempting to excite mutiny or rebellion or any sort of actual disturbance great or small. Whether any disturbance or outbreak was caused by these articles is absolutely immaterial”. This statement of law was later approved by the privy council.

Another landmark case in which the scope and nature of sedition as defined in the Indian code was explained was Sadashiv Narain Bhalerao’s case[2]. The privy council held “but even if he (accused) neither excited nor intended to excite any rebellion or outbreak or forcible resistance to the authority of the Government still if he tried to excite feelings of enmity to the Government that is sufficient to make him guilty under the Section”.

DISAFFECTION TOWARDS THE GOVERNMENT

Thus the law of sedition which has emerged from the decisions of the privy council during the pre-independence era is for that a simple statement or a speech which can excite “disaffection” towards the Government the maker of the speech or statement is liable to be prosecuted under Sec 124A. No incitement to violence or insurrection is necessary. The implication of this statement of law is that after the Constitution came into force, Section 124 A of the IPC would become violative of the fundamental right to freedom of speech and expression. Thus sedition, a draconian law of the colonial era would have been out of the penal code for good.

However this did not happen because in 1962 the Supreme Court upheld the constitutional validity of Sec 124A in the Kedarnath case.[3] During the colonial period sedition was considered a black law and was used extensively against the leaders of the freedom movement. Mahatma Gandhi, Bal Gangadhar Tilak and many other leaders were put behind bars for many years under this law. But the constitution bench of Supreme Court painted it white and presented it before the free Indians as a necessary law in the interest of the survival of republic.

The constitutional validity of sedition was upheld by the Supreme Court on the basis of an interpretation of Sec 124A in line with the decisions of the federal court in Niharendu’s case[4] and certain English cases. In this case Sir Maurice Gwyer, CJ stated the law on sedition in the following words “public disorder or the reasonable anticipation or likelihood of public disorder is thus the gist of the offence. The acts or words complained of must either incite to disorder or must be such as to satisfy reasonable men that that is their intention or tendency”. In line with this statement of law by the federal court, the Supreme Court of India held that as public disorder and violence are the essential ingredients of sedition it is a law made in the interest of public order under Article 19 (2) and hence is a reasonable restriction on the fundamental right of freedom of speech.

However this statement of law made by the federal court was clearly overruled by the Privy Council, the highest appellate court and held that the law declared in Tilak’s case was the correct law. But the Supreme Court of India opted for the view taken by the federal court and not by the Privy Council because it wanted to uphold the validity of sedition as a reasonable restriction on the fundamental rights. By its own admission the statement of law made by the Privy Council in Tilak and Bhalerao and other English cases was sound but adopted the federal court view because it wanted the law of sedition to be in the penal statute. The following observations of the Supreme Court in Kedarnath Singh’s case indicate why it wanted sedition to remain on the statute book: “In other words any written or spoken words etc. which have implicit in them the idea of subverting Government by violent means which are compendiously included in the term revolution have been made penal by the section in question”. Obviously the court wanted to stop revolution in India by upholding the validity of sedition!

The Court also weakened the base of its own judgment by observing that the federal court took a view different from the Privy Councils because the latter’s various judgments were not shown to the federal court. In other words the federal court would have gone with the Privy Council on the interpretation of sedition had its views been available to it. So there was nothing inherently infallible about the view taken by the federal court which our Supreme Court adopted as the most acceptable legal decision. Further, Article 19(2) permits reasonable restrictions on the freedom of speech. if the law imposing reasonable restriction is made in the interest of public order , it is constitutionally valid. This is the ground on which Kedarnath Singh judgment upheld the constitutional validity of sedition. There is an obvious fallacy in this argument.

The Court itself says that the words “in the interest of public order” are of the widest amplitude. “Reasonable restriction” and “words of widest amplitude” are mutually contradictory. Restrictive provisions can’t be so open ended and wide. They need to be narrow and restricted. The highest law court of the time had declared that public disorder or violence is not an essential ingredient of sedition under the Indian code. This being so it should be assumed that sedition is not a law enacted in the interest of public order and hence outside the protective cover of Article 19(2).

SUPPRESSING THE INDIAN VOICE

The Colonial Government in India inserted Sec 124A in the code for the purpose of suppressing the Indian voice. So the law of sedition was made stringent which was different from the English law. The English law did not define sedition but the Indian code defined it. The privy council therefore said that if the law defines the offence in clear terms the courts should go by that definition and as per the text of Sec 124A a simple speech or statement which can cause disaffection towards the government and nothing more shall bring it within the mischief of sedition. This is how the law of sedition was always enforced in India. So with the coming into force of the Constitution, Section 124A would have become an unreasonable restriction on the freedom of speech and thus would have become violative of the fundamental right. By retaining it in the code, free India’s governments repudiated the concept of human rights evolved through long years of freedom struggle.

Every strong criticism of the government, a minister or a chief minister or the prime minister causes some amount of disaffection towards them. When people read about the corrupt deeds of a government what exactly is the feeling that is generated in them? Is it contempt or hatred or a feeling of love and sympathy for such a government? In a democracy the people change such governments through vote. No democratic government can afford to charge people with sedition and put them behind bars for saying things which they have the freedom to say. So the offence of sedition has no place in a democracy. That is why the British repealed it in their own country even though they had brought in the toughest variety of sedition when they ruled India. But democratic India even with all its bitter experience of the operation of this law by the colonial government retained it and used it liberally against its people taking refuge under a Supreme Court decision validating it.

There is an urgent need to review this judgment of the Supreme Court and declare sedition unconstitutional or alternatively, parliament should repeal it at the earliest. If someone raises slogans against India or endangers the security of India he should be dealt with under appropriate laws. The law of sedition is too colonial, too dangerous and too destructive of the basic freedoms of the people. It should be scrapped.